Refusing to Provide a Breath Sample

There are several categories of Canadian law that pertain to being charged with driving under the influence of alcohol or drugs. In addition to Impaired Driving ('Over 80'), Failing to Provide a Breath Sample is also treated as a serious criminal offence. If you are charged with Failing to Give a Breath Sample, you may receive significant penalties including licence suspension, monetary fines and possible imprisonment for up to 4 months. If you have been charged with failing to comply with a breath request, you need to immediately call the Ted Yoannou criminal law team.

The following facts pertain to Refusing to Take a Breathalyzer Test:

Penalties for Failing to Give a Breath Sample

Pursuant to the Canadian Criminal Code, Failing to Give a Breath Sample is a punishable offence, the same as if you took the test and failed. The penalties for Refusing to Take a Breathalyzer Test, either at the scene or at the police station are as follows:

  • One year suspension of your driver's licence for a first offence and two to five years for a second offence. Three years to a permanent driver's licence suspension for the third or more offences.
  • $1000 minimum fine for first offence, minimum 30 days in jail for second offence, and minimum 120 days in jail for additional offences.
  • You must complete an alcohol education treatment program.
  • Increase in your auto insurance premiums up to three times your current premium.
  • You may also be charged with Impaired Driving.

Additional Penalties for Refusing to Take the Breathalyzer Test

Moreover, there are a number of unforeseen consequences resulting from the criminal record you will have for refusing to take a breath test, which can spill over into your everyday life and have a significant negative impact. These consequences can be:

  • losing your job
  • increased difficulty in finding a new job
  • immigration, residential and citizenship issues
  • credit denial or restrictions
  • public stigmatism due to media publicity

Police Requirements

Even though it is usually a good idea to take the breath test, the police are required to make certain statements perfectly clear to you when you are pulled over, such as:

  • clearly setting out the reason for your arrest and making a valid breath demand
  • you have the right to consult a lawyer "before" you take the breath test. Note: this is not to be confused with the roadside physical test, you do not have the right to speak with a lawyer before such a test.

Valid Reasons for Asking You to Take the Breathalyzer Test

There are several factors that may lead police to have a reasonable suspicion that you are impaired by alcohol. These reasons form the basis for the officer to make a demand for you to provide a sample of your breath. The police may ask you to provide a breath sample if the officer thinks any of the following are true:

  • you were driving erratically
  • you were observed leaving a bar or restaurant that serves alcohol
  • you were pulled over for another reason and the officer smells alcohol on your breath
  • there are open alcohol containers in your car
  • you admitted to drinking alcohol

Reasons Why You May Not Have Been Able to Take the Breathalyzer Test

There are reasons why you may not be able to give a breath sample. They include the following:

  • You may be physically unable due to a disability
  • You may be medically unable because you are taking legal prescription drugs

In summary, short of having a medical condition or physical disability that prevents you from taking the breathalyzer test, it is a good idea to comply with an officer's request that you do so. However, if you choose not to take the breath test and are charged with Failure to Take the Breathalyzer Test, our firm will zealously prepare a defence. Police sometimes make mistakes. Once we have gathered all the evidence, including your statement and the police reports, we can determine whether the police acted properly and in accordance with the requirements of the law when making the arrest and subsequent demand. We will leave no details unexamined and use all the resources at our disposal to defend this charge.

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